Hyman v. State

Barbera, C.J. The case before us has its origins in Petitioner Gerald Hyman's conviction on a plea of guilty to the crime of third degree sexual offense. For that crime, Petitioner received a three-year sentence, fully suspended, with three years of supervised probation. As a result of the conviction, Petitioner was required to register as a sex offender. Since then, Petitioner has engaged in several efforts to obtain relief from registration.

None have proved successful. In this matter, his most recent effort, Petitioner has filed his second petition for a writ of coram nobis. He presents two claims in support: he was deprived of the effective assistance of counsel before and at the combined plea and sentencing proceeding, and his guilty plea was involuntary. Both claims concern his asserted ignorance of the duration of his sex offender registration.

The Circuit Court for Anne Arundel County, finding Petitioner's claims to be without merit, denied him coram nobis relief. The Court of Special Appeals affirmed, holding, upon reaching the merits of those claims, that the coram nobis court had correctly denied the petition. We affirm the judgment of the intermediate appellate court, but on a different ground. We hold, for the reasons that follow, that Petitioner waived the grounds underlying both claims and, therefore, we have no cause to address the merits of those claims.

I. Facts and Procedural History The plea and sentencing for third degree sexual offense In 2000, Petitioner was charged in Anne Arundel County with one count of third degree sexual offense, one count of second degree assault, and one count of fourth degree sexual offense. All charges stemmed from events taking place on July 14 of that year, when Petitioner, then thirty years old, engaged in purportedly consensual sexual intercourse with a fourteen-year-old female. A combined plea and sentencing proceeding took place on January 23, 2001, in the Circuit Court for Anne Arundel County. Appearing on behalf of Petitioner was attorney Shawn Gaither. 1 At that time, Petitioner entered a plea of guilty to third degree sexual offense in exchange for the State's agreement to enter a nolle prosequi of the remaining charges and to recommend to the court that Petitioner be sentenced "within the guidelines," which in Petitioner's case was a fully suspended sentence and three years of supervised probation.

In response to the court's questioning, Petitioner said he was thirty years old, married, and employed as an electrician. Petitioner further responded that he understood he had a right to a jury trial at which the State would have to prove his guilt beyond a reasonable doubt; that he was not currently under the effects of alcohol, narcotics or medications; and that he suffered no mental disability that impaired his "understanding [of] what [he was] doing now" in going forward with the plea. At that point, the court found Petitioner to have "affirmatively, knowingly and intelligently waived his right to a trial by jury." The court then reviewed with Petitioner the pending charges and confirmed that he was aware that his counsel had discussed the proposed plea agreement with the State; the agreement contemplated Petitioner's plea of guilty to third degree sexual offense; and the State would enter a nolle prosequi as to the remaining charges. The court, after noting that "the maximum penalty in this case is 10 years imprisonment," restated the terms of the proposed plea agreement, including the State's recommendation that the court impose a sentence of "probation and that [Petitioner] register as a child sex offender" and comply with other conditions.

In response to Petitioner's concerns, the court clarified that the condition prohibiting "unsupervised visitation with any minor children" would not limit his access to his own children. The court asked Petitioner if he understood the terms of the plea agreement and the consequences of it. He responded "yes." In response to the court's further questioning, Petitioner denied that he had received any promises or inducements to plead guilty, again said that he had been provided ample time to speak with counsel, and declared once again that he understood that by pleading guilty he was giving up the right to a trial by jury. The court accepted Petitioner's plea of guilty to third degree sexual offense and then proceeded directly to sentencing.

The court heard from the victim's mother, Petitioner's step-father, and Petitioner. Following that, the court sentenced Petitioner to three years' incarceration, all suspended in favor of three years' supervised probation with conditions. The court added: As a part of that probation, sir, you are to register as a child sex offender. You are to give blood to the DNA [sic] under Article 88, Section 12(a).

You are to have no contact with [T.H.] or any member of her family, and you are to have no illegal contact with minor children. And you are to pay the costs of these proceedings. At the time Petitioner was sentenced, a person convicted of third degree sexual offense was required to register as a sex offender for life. Pertinent to the matter before us, no mention was made on the record of the plea and sentencing proceeding of the duration of that registration period.

At the close of the proceeding, the court instructed Petitioner to complete an order of probation form. The court pointed out that the order contained, "[i]n addition to the terms and conditions I have told you about, ... other terms you have to live by." The court added, "If you don't understand any of them, ask me before you leave here today. Otherwise, the Court will assume you understand." Petitioner's probation order reads, in part, "[A]ll probation is subject to the following conditions." The order lists several generic conditions, has boxes the court may choose to check, and has blank lines at the bottom. On those blank lines, the court wrote, "Special Conditions: (1) Register as a Child Sex offender (2) Give blood for DNA testing under Art 88 § 12A (3) No contact w/ victim [T.H.] or her family (4) No illegal contact with minor children." Petitioner signed the order.

In April 2001, several months after the plea hearing, Petitioner completed his initial sex offender registration form. The form includes boxes for the registration terms, labeled either "10 year" or "lifetime." The "10 year" box on Petitioner's registration form was marked, indicating, incorrectly, that he was required to register annually for ten years. In May 2002, Petitioner completed a registration form; again, the box for a "10 year" registration term was marked. In June 2003, Petitioner again completed a registration form; on that occasion, the box for a "10 year" registration term was marked and crossed out, and the box for "lifetime" was marked with Petitioner's initials next to it.

The 2006 coram nobis proceedings On June 24, 2004, Petitioner was convicted in federal court of an unrelated drug offense and was sentenced to seventy-eight months' imprisonment. 2 Petitioner was told of the Federal Bureau of Prisons' Residential Drug Abuse Program ("RDAP"). One feature of the program was the incentive of early release from incarceration. Petitioner learned that as a convicted sex offender, he was not eligible for the early release incentive. That information evidently prompted Petitioner to file, on October 6, 2006, his first coram nobis petition.

The petition was not prepared by counsel or Petitioner himself, but rather by a so-called "jailhouse lawyer." Petitioner advanced two claims in the petition: (1) he received ineffective assistance of counsel before and during the plea and sentencing proceeding, and (2) his plea of guilty to third degree sexual offense was involuntary. Petitioner argued, in particular, that counsel did not prepare adequately for trial, did not afford him a meaningful opportunity to consult prior to pleading guilty, and coerced him to plead guilty. Petitioner asserted that as a collateral consequence of the coerced guilty plea, he was foreclosed from obtaining early release. Petitioner sought the relief of vacatur of the 2001 sexual offense conviction.

Among other arguments, he asserted that he was unaware that the victim was below the age of eighteen and that she consented to the sexual activity. Petitioner did not directly complain about the duration of his sex offender registration period. He merely conveyed his understanding at the time of the plea that his sex offender registration was "part of [his] probation package." The circuit court denied the coram nobis petition without a hearing on May 14, 2007, having found no "evidence [that] Defendant did not clearly understand what he was doing and he entered his plea willingly." The court added that, contrary to Petitioner's complaint, the "statutory sexual offense" of which he was convicted "has no mens rea requirement." Petitioner noted an appeal of the coram nobis court's decision on June 14, 2007. On March 10, 2008, while his appeal was pending in the Court of Special Appeals, Petitioner was released early from federal prison apparently as a result of changes in the Federal Sentencing Guidelines. 3 Upon learning of Petitioner's release, the Court of Special Appeals dismissed the appeal as moot.

The court reasoned that "the sole basis" of Petitioner's coram nobis claim was "that his Maryland conviction of third degree sexual offense [made] him ineligible to participate in the RDAP, and that completion of the RDAP would [have made] him eligible for early release from federal incarceration." The intermediate appellate court further reasoned that Petitioner had already obtained the remedy he sought, i.e. early release, and that no exceptions to the mootness doctrine applied. Petitioner did not seek certiorari review of the Court of Special Appeals' decision. Subsequent intervening events In 2008, Petitioner received from the Department of Public Safety and Corrections a "Notice of Sexual Offender Registration Requirements." The notice stated that Petitioner was required to register every six months for life. Petitioner signed the notice.

In 2010, the Maryland Sex Offender Registration Act ("MSORA") was amended. As a result, Petitioner's period of registration was reduced from "lifetime" to twenty-five years. See Md. Code (2001, 2018 Repl. Vol.), § 11-707(a)(4)(ii) of the Criminal Procedure Article ("CP").

The 2013 declaratory judgment proceedings On March 29, 2013, Petitioner, through counsel, filed a "Complaint for Declaratory Judgment and for a Temporary Restraining Order and Preliminary and Permanent Injunctive Relief" in the Circuit Court for Anne Arundel County. Evidently relying on the forms he signed in 2001 and 2002 reflecting registration for ten years, Petitioner claimed, for the first time, that "due to the retroactive application of the sex offender law, [Petitioner] is now required to register for life." 4 Elsewhere, he described the MSORA as applied to him ex post facto . He asked for a judgment that would: (1) declare that MSORA was unconstitutional as applied to him and, consequently, he should be removed from the registry; and (2) enjoin the State from continuing to require him to register and publish his private information online. After various amended complaints, motions for summary judgment, and a hearing, the circuit court denied Petitioner's motion for declaratory judgment and injunctive relief.

The court opined that Petitioner could seek a writ of coram nobis, but declaratory judgment was an inappropriate civil remedy in this circumstance. Calling sex offender registration a "conviction-based obligation," the court disclaimed the "authority to change the statute or declare it inapplicable to [Petitioner]." The Court of Special Appeals affirmed the circuit court in an unreported opinion, stating: Deficiencies in the information conveyed-whether by the court in the guilty plea proceeding or by his counsel prior thereto-regarding registration had no effect on [Petitioner's] obligation to register. The sentencing court had absolutely no authority to waive or modify MSORA's terms. To conclude otherwise would allow a sentencing court to frustrate the important purposes of the statute through inadvertence or oversight at a guilty plea proceeding.

The instant coram nobis petition Proceedings in the coram nobis court In 2016, Petitioner, through counsel, filed a second Petition for Writ of Error Coram Nobis, the subject of this appeal. The coram nobis court interpreted the allegations as presenting two "interrelated constitutional challenges": (1) Petitioner's plea was involuntary; and (2) he received ineffective assistance of counsel. Petitioner contended that both claims arose from his having been coerced into accepting the plea offer as the result of counsel's failure to advise him of the length of his registration period. Petitioner alleged that he had expected his sex offender registration period to be ten years from his 2001 conviction, and that the ten years, tolled during his four years in federal prison when he was not required to register, 5 should have ended in 2015.

Petitioner further alleged that his registration period had been increased to lifetime following his 2008 release from federal prison and that the 2010 MSORA amendments had increased the frequency of his registration. Petitioner thus argued that because of these heretofore unknown conditions, he could not be forced to register for longer than ten years, except as extended for the period during which he was in federal prison and the requirement of registration was tolled. 6 The State, in its answer, denied all of Petitioner's allegations. The State argued that Petitioner's claims were waived or barred by laches. The State also disputed the constitutional nature of Petitioner's claims.

The State further asserted that Petitioner was unable to demonstrate that a different result would have been obtained in the original criminal case had he known the duration of his registration period; consequently, he could not establish that he faced significant collateral consequences. In his reply to the State's answer, Petitioner acknowledged that, at the time of his conviction, the law required lifetime registration for his offense. He argued nonetheless that the 2001 and 2002 registration forms he was required to sign indicated a ten-year registration and only in 2003 was he told for the first time that his registration would be for life. Petitioner also acknowledged that at the plea hearing he "was generally informed by the Court (but not by his attorney) that he would have to register as a child sex offender." Further, "he was NOT informed of any precise or even estimated period of years of registration that came with the plea (it was lifetime registration at the time)." (Emphasis in original).

He described how he suffered as the result of the mandated registration: [Petitioner] has suffered more than a decade of grueling, heartbreaking consequences of registration, having had to move several times over the years just to avoid harassment and perceived danger to him and his family, including his own children because his personal information and whereabouts are now published on the web for anyone to see and act upon. He further lamented being "prohibited by TSA from going on a wedding anniversary cruise with his wife, because of this conviction." At the hearing on his petition on December 1, 2016, Petitioner sought the relief of a ten-year registration, in accordance with the initial term he was told, or, in the alternative, that he be allowed to withdraw his plea. Petitioner stated on direct examination that he had assumed at the time of his plea that his registration period would persist only during the three years of probation, and that the judge's mention of it during the plea colloquy was the first he had heard of that consequence. Petitioner testified that a notice of registration he received on April 23, 2001, three months after his plea was accepted by the court, was the first he had learned of a ten-year registration period.

He also testified to harassment due to his sex offender registration-flattened tires, dogs being allowed to defecate on his stoop, and receipt of threats-and to losing job opportunities due to his registration. The coram nobis court denied the petition in a written Statement of Reasons and Order. The court rejected the ineffective assistance of counsel claim, sidestepping the deficient performance Strickland prong to find that Petitioner had not shown that he was prejudiced by counsel's failure to inform him of the length of his registration period. 7 The coram nobis court found that a reasonable defendant in Petitioner's position, having violated a strict liability statute-even knowing the length of registration-would not have insisted on going to trial. The court also found that Petitioner's challenge was to the length of registration, not knowledge of the need to register.

The court noted the absence of any evidence, other than Petitioner's own testimony, that he was coerced into pleading guilty. Review in the Court of Special Appeals Petitioner noted an appeal to the Court of Special Appeals challenging the coram nobis court's reasoning and ultimate ruling that he had not made his case for coram nobis relief. The State responded to the merits of Petitioner's argument, but first argued that Petitioner had waived his right to seek coram nobis relief because he forwent the opportunity to raise, in the 2006 petition, the claims he raises in this, the 2016 petition. The Court of Special Appeals rejected the State's waiver argument.

That court quoted Skok v. State , 361 Md. 52 , 79, 760 A.2d 647 (2000), for the proposition that "[b]asic principles of waiver" apply in coram nobis proceedings, consistent with the Maryland Uniform Postconviction Procedure Act ("UPPA"). The intermediate appellate court accepted that Petitioner had not raised the current claim in his 2006 coram nobis petition but reasoned that the 2006 petition had been prepared by a "jailhouse lawyer" and filed without fully reflecting Petitioner's understanding or thinking. The intermediate appellate court also "acknowledge[d] that [Petitioner] received contradictory and incorrect information about his registration period" at various times. Therefore, the court concluded that it "cannot find that [Petitioner] intelligently and knowingly failed to raise the issues relating to the required sex offender registration time period." Turning then to the merits of Petitioner's claims, the Court of Special Appeals first affirmed the coram nobis court's denial of the ineffective assistance of counsel claim.

The intermediate appellate court set out the two-prong test of Strickland v. Washington , 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), for determining ineffective assistance of counsel: the petitioner must establish both that "counsel's representation fell below an objective standard of reasonableness," 466 U.S. at 688 , 104 S.Ct. 2052 , and that such deficient performance was "prejudicial to the defense," id. at 692 , 104 S.Ct. 2052 . Further, in the plea bargaining context, prejudice requires showing "a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52 , 59, 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). As the coram nobis court had done, the Court of Special Appeals proceeded directly to the prejudice prong of Strickland and concluded that Petitioner had failed to establish prejudice. The court rejected, as an insufficient demonstration of prejudice, Petitioner's " post hoc testimony" that, with proper advice of his registration period, he would have gone to trial or that a reasonable defendant in Petitioner's shoes would have chosen to do so.

Rather, "contemporaneous evidence," not " post hoc assertions," should be used to "substantiate a defendant's expressed preferences." Lee v. United States , --- U.S. ----, 137 S. Ct. 1958 , 1967, 198 L.Ed.2d 476 (2017). Like the coram nobis court, the Court of Special Appeals concluded that Petitioner's asserted reasonable belief that the victim of the sexual offense was older is not a legal defense to third degree sexual offense, so a reasonable person in his position probably would have taken a fully suspended sentence rather than face a total of twenty-one years for the charged strict liability offenses if convicted following a trial. Therefore, Petitioner failed to demonstrate prejudice. Finally, the Court of Special Appeals was "unpersuaded by [Petitioner's] contentions" that, in the totality of the circumstances, he did not plead knowingly and voluntarily.

The intermediate appellate court did not review whether Petitioner understood the nature of the charge or the factual basis for his plea, noting that he had not made that argument to the coram nobis court. As for the lack of advice, the court "observe[d] that [Petitioner] was advised multiple times, on the record," that his guilty plea required registration as a sex offender, and, in any case, a lack of advice regarding indirect or collateral consequences of pleading guilty does not necessarily vitiate a defendant's due process rights. The court "decline[d] [Petitioner's] invitation to revisit" whether sex offender registration is a direct consequence of the plea. We granted Petitioner's petition for certiorari, and the State's conditional cross-petition, Hyman v. State , 459 Md. 399 , 187 A.3d 35 (2018), to address six questions, 8 which we have consolidated and rephrased: 1.

Does Petitioner's unawareness of the duration of his requirement to register as a child sex offender at the time of his plea render his plea involuntary or his counsel's assistance ineffective? 2. Does Petitioner's silence on the duration of his requirement to register as a child sex offender in his 2006 pro se coram nobis petition render constitutional claims based on that unawareness waived in this proceeding?

II

Coram Nobis Relief in Maryland The "essential nature of the writ of coram nobis is that it is an 'extraordinary remedy' justified 'only under circumstances compelling such action to achieve justice. ' " State v. Smith , 443 Md. 572 , 597, 117 A.3d 1093 (2015) (quoting Skok , 361 Md. at 72 , 760 A.2d 647 ). The writ is "available to raise fundamental errors in attempting to show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound